Citation Nr: 0624360
Decision Date: 08/11/06 Archive Date: 08/18/06
DOCKET NO. 04-01 431 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to service connection for heart disease,
including hypertension, secondary to type 2 diabetes
mellitus.
2. Entitlement to an initial evaluation in excess of 20
percent for type 2 diabetes mellitus.
3. Entitlement to an initial evaluation in excess of 10
percent for peripheral neuropathy, left lower extremity.
4. Entitlement to an initial evaluation in excess of 10
percent for peripheral neuropathy, right lower extremity.
REPRESENTATION
Veteran represented by: Vietnam Veterans of America
ATTORNEY FOR THE BOARD
L. J. N. Driever, Counsel
INTRODUCTION
The veteran had active service from July 1966 to July 1979.
These claims come before the Board of Veterans' Appeals
(Board) on appeal of a September 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas.
The Board REMANDS this appeal to the RO via the Appeals
Management Center (AMC), in Washington, D.C.
REMAND
The veteran claims entitlement to service connection for
heart disease, including hypertension, and higher initial
evaluations for diabetes mellitus and peripheral neuropathy
of the lower extremities. Additional action is necessary
before the Board can decide these claims.
On November 9, 2000, the Veterans Claims Assistance Act of
2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002), became law. Regulations
implementing the VCAA were then published at
66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and codified
at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2005). The
VCAA and its implementing regulations are applicable to this
appeal.
The VCAA provides that VA must notify a claimant of the
evidence necessary to substantiate his claim and assist a
claimant in obtaining and fully developing all of the
evidence relevant to his claim. In this case, VA has not yet
satisfied its duties to notify and assist; therefore, to
proceed in adjudicating the claims on appeal would prejudice
the veteran in the disposition thereof. See Bernard v.
Brown, 4 Vet. App. 384, 392-94 (1993).
In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112,
119-20 (2004), the United States Court of Appeals for
Veterans Claims (Court) held that the VCAA requires VA to
provide notice, consistent with the requirements of 38
U.S.C.A. § 5103(A), 38 C.F.R. § 3.159(b), and Quartuccio,
that informs the claimant of any information and evidence not
of record (1) that is necessary to substantiate the claim,
(2) that VA will seek to provide, and (3) that the claimant
is expected to provide. In what can be considered a fourth
element of the requisite notice, the Court further held that,
under 38 C.F.R. § 3.159(b), VA must request the claimant to
provide any evidence in his possession that pertains to the
claim. Id. at 120-21.
On March 3, 2006, the Court held that the VCAA's notice
requirements apply to all five elements of a service
connection claim, including: (1) veteran status; (2)
existence of disability; (3) a connection between service and
disability; (4) degree of disability; and (5) effective date
of disability. Dingess/Hartman v. Nicholson, 19 Vet. App.
473, 484 (2006). The Court further held that notice under
the VCAA must inform the claimant that, if the RO grants his
service connection claim, it will then assign such an award a
disability rating and an effective date. Id. at 488.
In this case, the RO sent the veteran VCAA notice on his
cla
ims
for
ser
vic
e
connection by letter dated July 2002. Such notice, however,
did
not
dis
cus
s
disability ratings or effective dates. After the RO granted
the
vet
era
n's
cla
ims
for
service connection for diabetes mellitus and peripheral
neu
rop
ath
y
of
the
low
er
extremities and assigned those awards initial ratings, the RO
did
not
sen
d
the
veteran additional VCAA notice on his claims for higher
ini
tia
l
rat
ing
s.
VA
sho
uld
thus correct this procedural deficiency on remand by sending
the
vet
era
n
mor
e
comprehensive VCAA notice pertaining to such claims, which
com
pli
es
not
onl
y
with Quartuccio and Pelegrini II, but also with
Din
ges
s/H
art
man
.
In addition, under 38 U.S.C.A. § 5103A, VA's duty to assist
includes providing a claimant a medical examination or
obtaining a medical opinion when an examination or opinion is
necessary to make a decision on a claim. In this case,
multiple examinations are necessary.
With regard to the veteran's claim for service connection for
heart disease, including hypertension, the RO afforded the
veteran a prior VA examination, during which a VA examiner
opined that the veteran's diabetes mellitus did not cause his
heart disease or hypertension. Thereafter, however, the
veteran submitted a written statement of his private
physician opining that the diabetes mellitus aggravated the
veteran's heart disease and hypertension. This opinion
raises the question of whether the veteran is entitled to
service connection for heart disease, including hypertension,
under Allen v. Brown, 7 Vet. App. 439, 448 (1995) (holding
that, pursuant to 38 U.S.C.A. § 1110 and § 3.310(a), when
aggravation of a veteran's nonservice- connected condition is
proximately due to or the result of a service-connected
condition, such veteran shall be compensated for the degree
of disability (but only that degree) over and above the
degree of disability existing prior to the aggravation). A
VA examiner should address this matter on remand.
Opinions are also needed regarding whether the veteran's
diabetes mellitus and peripheral neuropathy of the lower
extremities have worsened since VA afforded the veteran
examinations in September 2002 and July 2004. The veteran
and his representative assert that such is the case and that
prior examiners did not take into account VA and private
medical evidence of record reflecting that the veteran's
disabilities now necessitate more aggressive treatment and
cause more severe industrial impairment. A VA examiner
should discuss these assertions on remand.
This case is REMANDED for the following action:
1. Provide the veteran VCAA notice on
his claims for higher initial
evaluations, which satisfies the
requirements of the Court's holdings in
Quartuccio, Pelegrini II and
Dingess/Hartman.
2. Afford the veteran a VA heart
examination for the purpose of determining
the nature and etiology of any heart
disease shown to exist. Forward the
claims file to the examiner for review of
pertinent documents therein and ask the
examiner to confirm in his written report
that he conducted such a review. Following
a thorough evaluation, during which all
indicated tests are performed, the
examiner should:
a) diagnose all heart disorders
shown to exist, including, if
appropriate, hypertension;
b) opine whether each disorder
is at least as likely as not
aggravated by the veteran's
service-connected diabetes
mellitus; and
c) provide detailed rationale,
with specific references to the
record, for the opinion
provided.
3. Afford the veteran a VA examination in
support of his claims for higher initial
evaluations. The purpose of such an
examination is to determine the severity
of the veteran's diabetes and peripheral
neuropathy. Forward the claims file to
the examiner for review of pertinent
documents therein and ask the examiner to
confirm in his written report that he
conducted such a review. Following a
thorough evaluation, during which all
indicated tests are performed, the
examiner should:
a) identify the nature,
frequency, severity and
duration of all manifestations
of the veteran's service-
connected diabetes and
peripheral neuropathy of the
lower extremities;
b) specifically indicate whether the
veteran's diabetes mellitus requires
insulin, a restricted diet and
regulation of activities and, if so,
note the date the disorder became so
disabling;
c) specifically indicate whether the
diabetes mellitus involves episodes
of ketoacidosis or hypoglycemic
reactions necessitating
hospitalizations and, if so,
describe the severity and frequency
of such episodes;
d) specifically indicate whether the
veteran's peripheral neuropathy
causes mild, moderate or severe
incomplete nerve paralysis or
complete nerve paralysis of the
right and/or left lower extremity;
and
e) provide detailed rationale, with
specific references to the record,
for the opinions provided.
4. Thereafter, readjudicate the veteran's
claims based on all of the evidence of
record. If any claim is denied, provide
the veteran and his representative a
supplemental statement of the case and an
opportunity to respond thereto.
Subject to current appellate procedure, AMC should then
return this case to the Board for further consideration. By
this REMAND, the Board intimates no opinion as to the
ultimate disposition of the appeal. No action is required of
the veteran unless he receives further notice. He does,
however, have the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369, 372 (1999).
The law requires that these claims be afforded expeditious
treatment. See The Veterans' Benefits Improvements Act of
1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658
(1994), 38 U.S.C.A. § 5101 (West 2002) (Historical and
Statutory Notes) (providing that all claims that are remanded
by the Board or by the United States Court of Appeals for
Veterans Claims (Court) for additional
development or other appropriate action must be handled
expeditiously); see also VBA's Adjudication Procedure Manual,
M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03 (directing
the ROs to provide expeditious handling of all cases that
have been remanded by the Board and the Court).
_________________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2005).